State Bank v. Slaughter

Blackford, J. — This was an action of assumpsit brought by the administrator of Chamberlin against the state bank, for [134] ^erta*n dividends on bank stock belonging to the intestate’s Plea, non assumpsit. The cause was submitted to the Court, and judgment rendered for the plaintiff. On the trial, the defendant’s possession of the dividends was admitted; and the defence was, that the intestate’s estate was indebted to the defendant, and that the latter therefore was not liable, by a provision of the bank charter, to pay the dividends, whilst that indebtedness of the estate continued. To prove the alleged debt to the bank, the following promissory note and indorsements were introduced: “ $200. Lafayette, Ind., Sept. 11, 1839. Ninety days after date, I promise to pay to Edward .Barroll and John C. Chamberlin or order 200 dollars, negotiable and payable at the branch at Lafayette of the state bank of Indiana, for value received. James White. Credit the drawer. E. BarrollJ (Indorsed) “Pay the state bank of Indiana. Edward Barroll. J. C. ChamberlinJ The maker’s non-payment of this note, and due notice of the default to the plaintiff, (Chamberlin being dead,) were also proved. Barroll, the other indorser, resided at Lafayette where the default occurred, and had there a. place of business. The only notice ■ for him of the maker’s default was deposited in the post office at Lafayette, which was not a legal notice. Curtis v. The State Bank, 6 Blackf. 312.—Story on Bills, 451. We are of opinion that, according to these facts, the bank had no claim against the plaintiff. The note was payable to two persons not partners, each of whom had indorsed it. The contract created by the indorsement being joint only, the indorsers, if liable at all, could be only jointly liable; and to render them so liable, the notice of the non-payment should have been given to them both. The following is the language of Justice Story as to bills of exchange : “ Where there are several persons, who ai'e joint drawers or indorsers, entitled to notice, who are not partners, each is entitled to notice, and, therefore, notice should be directed to his own proper domicil or place of business. Where they are partners, notice to either of the partners will suffice, at the domicil of either of them, or at their usual place of business.” Story on Bills, 335. The law as to notice to joint indorsers [135] must be the same, whether the indorsement be of a promissory note or bill of exchange; and the indorsers in the present case, therefore, according to the authority cited, were discharged for want of legal notice to each of them. A. Ingram, for the appellant. J. Pettit and $. A. Huff, for the appellee. Per Curiam. — The judgment is affirmed, with 3 per cent. damages and costs.